P. v. Cano
Filed 2/27/12 P. v. Cano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JEFFREY ANTONIO CANO,
Defendant
and Appellant.
E053347
(Super.Ct.No.
FVA1000874)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Cara
D. Hutson, Judge. Affirmed as modified.
Lynelle
K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and
Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Jeffrey Antonio Cano pled guilty to one count of
(a).) The trial court granted probation
for a period of three years, subject to certain terms and conditions. On appeal, defendant argues that the court
abused its discretion when it imposed a gang registration condition, since
there was no evidence that the offense was gang related. The People concede, and we agree.
FACTUAL AND PROCEDURAL BACKGROUND
On June 3, 2010, a police officer conducted a traffic
stop. Defendant was the driver of the
car the officer stopped. Defendant
consented to a search of his person. The
officer found a clear plastic bag that contained what appeared to be marijuana,
as well as 11 clear plastic baggies, in defendant’s front pocket. The officer searched defendant’s car and
found a glass pipe with white residue on it.
Defendant stated that he was an active gang member. The officer asked if he had any gang-related
tattoos. When defendant took off his
shirt to show his tattoos, the officer noticed a clear plastic baggie containing
what appeared to be methamphetamine in his belly button. The officer took the baggie. The substance tested positive for
amphetamines.
Defendant
was arrested and charged with possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a), count 1),
Code, § 14601.2, subd. (a), count 2),
& Saf. Code, § 11364, subd. (a), count 3), possession of
marijuana (Health & Saf. Code, § 11357, subd. (b), count 4), and
false evidence of registration (Veh. Code, § 4462.5, count 5). He entered a plea agreement and pled guilty
to count 1 in exchange for the dismissal of the remaining counts and a grant of
probation for three years. At the
sentencing hearing, defense counsel objected to some of the probation
conditions recommended in the probation report, including the gang terms. Defense counsel expressly did not object to
the term barring defendant from associating with known gang members. The prosecutor asked for some of the gang
terms to be imposed, based on defendant’s admitted gang membership. The court struck some of the gang terms and
imposed others, including condition no. 29, which stated: “Register your address with the appropriate city or county
law enforcement agency, pursuant to [Penal Code] section[s] 186.30/186.31
within ten (10) days from this date, and submit proof of current registration
to the Probation Officer within thirty (30) days from this date” (the gang registration condition).
ANALYSIS
The Gang Registration
Condition Should Be Stricken
Defendant
argues that the court abused its discretion when it imposed the gang
registration condition, since there was no evidence that defendant’s possession
of methamphetamine was gang related. The
People correctly concede.
“Trial
courts have broad discretion to set conditions of probation in order to ‘foster
rehabilitation and to protect public safety pursuant to Penal Code section
1203.1.’ [Citations] . . . [¶]
However, the trial court’s discretion in setting the conditions of
probation is not unbounded.” (
615, 624.)
Penal
Code
title="">[3] section 186.30, subdivision (a), provides
that: “Any person described in
subdivision (b) shall register with the chief of police of the city in which he
or she resides, . . . within 10 days of release from custody or
within 10 days of his or her arrival in any city, county, or city and county to
reside there, whichever occurs first.”
Subdivision (b) provides:
“Subdivision (a) shall apply to any person convicted in a criminal court
. . . for any of the following offenses: [¶] (1) Subdivision (a) of
Section 186.22. [¶] (2) Any
crime where the enhancement specified in subdivision (b) of Section 186.22 is
found to be true. [¶] (3) Any
crime that the court finds is gang related at the time of sentencing or
disposition.”
In
this case, defendant should not have been required to register pursuant to
section 186.30 because he was not a person described in subdivision (b). He was not convicted of participation in a
criminal street gang (§ 186.22, subd. (a)), there was no true finding
made that he committed a crime for the benefit of, or in association with, a
criminal street gang (§ 186.22, subd. (b)), and the court did not find
that his current offense was gang related at the time of sentencing. (§ 186.30.) Moreover, because of the guilty plea, there
was no evidence from which the court could find that defendant’s crime was gang
related, other than defendant’s admission of gang membership. However, “a crime may not be found
gang related within the meaning of section 186.30 based solely upon the
defendant’s criminal history and gang
affiliations.” (People v. Martinez (2004) 116 Cal.App.4th 753,
761.)
Therefore,
the gang registration condition should be stricken.
DISPOSITION
The
judgment is modified to strike the probation condition which states: “Register your address with the appropriate
city or county law enforcement agency, pursuant to [Penal Code] section[s]
186.30/186.31 within ten (10) days from this date, and submit proof of current
registration to the Probation Officer within thirty (30) days from this date.” In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
title=""> [1] The facts are taken from the probation
officer’s report.
name="_ftn2" title=""> [2] We note that the probation officer’s report
and the court referred to this condition as term No. 29. However, the minute order referred to it as
term No. 28.
